STATEMENT FOR THE RECORD COMMITTEE ON THE JUDICIARY UNITED STATES SENATE HEARING ON THE SPECIAL COUNSEL’S REPORT ON THE PROSECUTION OF SENATOR TED STEVENS MARCH 28, 2012 Statement for the Record from the Department of Justice Committee on the Judiciary United States Senate Hearing on the Special Counsel’s Report on the Prosecution of Senator Ted Stevens March 28, 2012 1. Introduction The Department of Justice respectfully submits this statement for the record of today’s hearing before the Senate Judiciary Committee on the Special Counsel’s Report on the Prosecution of Senator Ted Stevens. When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, to ensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement – for the first time in the history of the Department of Justice – that every federal prosecutor receive refresher discovery training each year. In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources. As was recently recognized by the Advisory Committee on Criminal Rules of the Judicial Conference of the United States (“Criminal Rules Committee”), which in 2010-11 considered and rejected changes to Rule 16, true improvements to discovery practices will come from prosecutors and agents having a full appreciation of their responsibilities under their existing obligations, rather than by expanding those obligations. 2. The Schuelke Report and the OPR Investigation As Mr. Schuelke acknowledged in his report, the Department cooperated fully with Mr. Schuelke’s inquiry into the prosecution of former Senator Ted Stevens. The Department’s Office of Professional Responsibility (“OPR”) separately investigated allegations of professional 1 misconduct by prosecutors in the Stevens case. Although OPR and Mr. Schuelke worked together and shared information throughout the investigative process, OPR is required to make an independent assessment of the allegations of misconduct. The entire Department misconduct review involves various steps, and the process is not finished until all the necessary steps have been completed. No formal action is taken against a Department employee until the disciplinary process is final. The Department seeks to be as transparent as possible with respect to decisions involving our attorneys. Nonetheless, the Department must also comply with the provisions of the Privacy Act, and disclosures of information from OPR and Office of Inspector General investigations that examine the conduct of individual Department employees have significant Privacy Act implications. The Department’s misconduct review process is in its last stages. To the extent it is appropriate and permissible under the law, we will endeavor to make the OPR findings public when that review is final. The Department acknowledges the wide variety of discovery failures that occurred in the Stevens case. These failures are core topics of the Department’s training regimen. The discovery training and resources that have been put in place over the past three years are designed, in part, to minimize the likelihood that the types of failures that occurred in Stevens will happen again. 3. The Department’s response to the discovery failures that occurred in Stevens Attorney General Holder, who had taken office shortly after the Stevens trial, acted swiftly and decisively after learning of the discovery failures that occurred in that case. A new team of seasoned prosecutors was assigned to review the matter, and they determined that Senator Stevens and his attorneys had not been provided access to information they were entitled to receive. Because the undisclosed information could have affected the outcome of the case, the Attorney General took the extraordinary and appropriate step of dismissing the prosecution of Senator Stevens. He also ordered a comprehensive review of all discovery practices and related procedures across the country to reduce the likelihood of future discovery failures. The discovery failures in the Stevens case were not typical and must be considered in their proper context. Over the past 10 years, the Department has filed over 800,000 cases involving more than one million defendants. In the same time period, only one-third of one percent (.33 percent) of these cases warranted inquiries and investigations of professional misconduct by the Department’s Office of Professional Responsibility. Less than three-hundredths of one percent (.03 percent) related to alleged discovery violations, and just a fraction of these resulted in actual findings of misconduct. Department regulations require DOJ attorneys to report any judicial finding of misconduct to OPR, and OPR conducts computer searches to identify court opinions that reach such findings in order to confirm that it examines any judicial findings of misconduct, reported or not. In addition, defense attorneys are not reticent to raise allegations of discovery failures when they do occur. Our prosecutors and agents work hard to keep our country and communities safe and to ensure that criminals are brought to justice honorably and ethically. Nonetheless, when there is even a single lapse, we must, and we do, take it seriously, because it could call the integrity of our 2 criminal justice system into question and could have devastating consequences. In April 2009, within days after the Stevens case was dismissed, the Criminal Discovery and Case Management Working Group was created to review the Department’s policies, practices, and training concerning criminal case management and discovery, and to evaluate ways to improve them. Our comprehensive review of discovery practices identified some areas where the Department could improve, and we have undertaken a series of reforms which have since been institutionalized. In January 2010, the Office of the Deputy Attorney General issued three memoranda to all criminal prosecutors: “Issuance of Guidance and Summary of Actions Taken in Response to the June 2009 Report of the DOJ Criminal Discovery and Case Management Working Group,” “Requirement for Office Discovery Policies in Criminal Matters,” and “Guidance for Prosecutors Regarding Criminal Discovery.” These memoranda provide overarching guidance on gathering and reviewing potentially discoverable information and making timely disclosure to defendants; they also direct each U.S. Attorney’s Office and Department litigating component to develop additional, district- and component-specific discovery policies that account for controlling precedent, existing local practices, and judicial expectations. Subsequently, the Office of the Deputy Attorney General has issued separate guidance relating to discovery in national security cases and discovery of electronic communications. Later in January 2010, the Deputy Attorney General appointed a long-serving career prosecutor as the Department’s first full-time National Criminal Discovery Coordinator to lead and oversee all Department efforts to improve disclosure policies and practices. Since January 2010, the Department has undertaken rigorous enhanced training efforts, provided prosecutors with key discovery tools such as online manuals and checklists, and continues to explore ways to address the evolving nature of e-discovery. These steps have included: All federal prosecutors are now required to undertake annual update/refresher discovery training. Roughly 6,000 federal prosecutors across the country – regardless of experience level – receive the required training annually on a wide variety of criminal discovery- related topics. During 2010-11, the Department’s National Criminal Discovery Coordinator traveled to approximately 40 U.S. Attorney’s Offices throughout the country to present four-hour blocks of training on prosecutors’ disclosure obligations under Brady, Giglio, the Jencks Act, Rule 16, and the U.S. Attorneys’ Manual (“USAM”), as well as on the discovery implications of electronically stored information (“ESI”). He also conducted numerous training sessions for prosecutors and other law enforcement officials at Main Justice in Washington, D.C. – including a series of training sessions for attorneys at OPR and the Department’s Professional Responsibility Advisory Office – and at the National Advocacy Center in Columbia, South Carolina. Since 2010, the